Reporter Alice Sperry of theintercept.com wrote an article describing how prisoners around the country have called for a series of strikes against forced labor and demanded reforms of parole systems and prison policies; as well as more humane living conditions, a reduced use of solitary confinement, and better health care.

Apparently, Texas prisons are a hotbed for the controversy. Weeks ago, inmates at five Texas prisons pledged to refuse to leave their cells because of the strike. The organizers even drafted a letter articulating the reasons for the strike. Their demands range from the specific, such as a “good-time” credit toward sentence reduction and an end to $100 medical co-pays, to the systemic, namely a drastic downsizing of the state’s incarcerated population.

Today, however, the prison industrial complex is $2 billion a year industry, according to the Prison Policy Initiative, a nonprofit research institute.

Sperry article describes how a majority of prisoners work for the prisons themselves, making well below the minimum wage in some states, and as little as 17 cents per hour in privately run facilities. In Texas and a few other states, mostly in the South, prisoners are not paid at all, said Erica Gammill, director of the Prison Justice League, an organization that works with inmates in 109 Texas prisons.

In Texas, prisoners have traditionally worked on farms, raising hogs and picking cotton, especially in East Texas, where many prisons occupy former plantations.

Although they comprise nearly half the incarcerated population nationwide — about 870,000 as of 2014 — prison workers are not counted in official labor statistics; they get no disability compensation in case of injury, no social security benefits, and no overtime.

The Texas action is not an isolated one. Prisoners in nearby Alabama and Mississippi, and as far away as Oregon, have also been alerted to the Texas strike through an underground network of communication between prisons.

In March, protests erupted at Holman Correctional Facility, a maximum security state prison in Alabama, where two riots broke out over four days. At least 100 prisoners gained control of part of the prison and stabbed a guard and the warden. Those protests were unplanned, but prisoners there had also been organizing coordinated actions that they say will go ahead as planned.

“We have to strain the economics of the criminal justice system, because if we don’t, we can’t force them to downsize,” an activist serving a life sentence at Holman told The Intercept. “Setting fires and stuff like that gets the attention of the media,” he said. “But I want us to organize something that’s not violent. If we refuse to offer free labor, it will force the institution to downsize.”

“Slavery has always been a legal institution,” he added. “And it never ended. It still exists today through the criminal justice system.”

In State v. Keodara, the WA Court of Appeals ruled that a search warrant was overbroad in violation of the particularity requirement because it allowed police to search a cell phone “for items that had no association with any criminal activity and for which there was no probable cause whatsoever.”

In 2011, the defendant Say Keodara was involved in a shooting at a bus stop. Several weeks later, police arrested him for an unrelated incident. They searched his backpack and found his cell phone. Outside the backpack police found drugs, drug packaging and drug paraphernalia. An officer submitted an affidavit in support of a search warrant for the contents of the cell phone. The affidavit made several generalizations about drug dealers and gang members in support of the officer’s conclusion that there was evidence of crime on the cell phone. The judge issue the warrant pursuant to the affidavit, which ultimately allowed police to search Keodara’s entire phone without any limitations. Police searched the phone and found evidence that the State used when trying Mr. Keodara for the shooting at the bus stop.

Ultimately, the court held that although the search of Keodara’s phone violated the federal
constitution, the failure to suppress the evidence was harmless. It also held that Keodara’s sentence violated the 8th Amendment because the court failed to Keodara’s youth and other age-related factors into account. Accordingly, the court affirmed Keodara’s conviction but remanded for a new sentencing hearing.

In reaching its decision, the court reasoned that a warrant is overbroad if it fails to describe with particularity items for which probable cause exists to search. In this case, the affidavit for the warrant for Keodara’s phone contained blanket statements about what certain groups of offenders tend to do and what information they tend to store in particular places. Furthermore, the warrant’s language also allowed Keodara’s phone to be searched for items that had no association with any criminal activity and for which there was no probable cause whatsoever. The court also said the following:

Here, no evidence was seized that would have linked Keodara’s phone to the crimes listed in the warrant-unlawful possession of firearms, possession with intent to deliver or sell narcotics, or assault. Nothing in the record suggests that anyone saw Keodara use the phone to make calls or take photos. In addition, the phone was found in a backpack, separate from the drug paraphernalia or the pistol. There was no indication that evidence of firearms or drugs were found with the phone. We conclude that the warrant was overbroad and failed to satisfy the Fourth Amendment’s particularity requirement.

Nevertheless, the Court of Appeals also held that the trial court committed harmless error in admitting evidence police found on the phone:

Here, the untainted evidence of Keodara’s guilt was strong. Cellular phone tower records placed him near the location of the shooting, two eyewitnesses identified him, and another witness testified that Keodara contacted him and told him about the shooting. We find that the trial court’s denial of Keodara’s motion to suppress does not warrant reversal and, accordingly, we affirm his convictions.

The Court of Appeals also addressed the issue of whether Keodara’s sentence violated the Eighth Amendment. In short, the court said, “Yes.” It reasoned that the trial court did not take into account that Keodara was a juvenile at the time he committed the crimes or consider other age related factors that weigh on culpability or his capacity for rehabilitation. Based on that, the Court concluded that the sentence imposed in this case violated Keodar’s constitutional rights under the Eighth Amendment. Accordingly, the Court of Appeals vacated the sentence and remanded for a new sentencing hearing.

My opinion? Good decision. It appears that, more and more, our courts are rightfully acknowledging a Defendant’s youth at sentencing.

In State v. Schmeling, the WA Court of Appeals Division II decided that Felony Possession of a Controlled Substance is constitutional as applied under the Eighth Amendment and under the Fourteenth Amendment’s due process clause even though the statute makes possession of very small amounts of a controlled substance a felony without knowledge of possession or intent to possess.

Here, as part of a theft investigation, law enforcement officers searched Richard Schmeling’s car and uncovered two small baggies that contained white residue. The residue was tested and turned out to be methamphetamine. The State charged Schmeling with Felony Possession of a Controlled Substance under RCW 69.50.4013. Schmeling’s first trial ended in a mistrial because of a hung jury. On retrial, the jury convicted Schmeling. He appealed his conviction on the argument that RCW 69.50.4013 violates the Eighth Amendment prohibition of cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process because it makes possession of drug residue a felony without requiring any culpable mental state.

The Court of appeals reasoned that Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. The basic concept of the Eighth Amendment is that punishment for a crime must be proportionate to the offense. There are two types of Eighth Amendment analysis: (1) determining whether a sentence is disproportionate to the particular crime, and (2) using categorical rules to define constitutional standards for certain classes of crimes or offenders.

WAS SCHMELING’S SENTENCE PROPORTIONATE TO HIS CRIME?

The Court gave historical background showing that many Eighth Amendment cases address whether a particular punishment is disproportionate to the crime. The Eighth Amendment does not require strict proportionality between crime and sentence and forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. Most courts have shown a reluctance to review legislatively mandated sentences. As a result, successful challenges to the proportionality of sentences are exceedingly rare.

Here, Schmeling argues that classifying possession of small amounts of a controlled substance as a felony without a knowledge or intent constitutes cruel and unusual punishment. However, the Court of Appeals reasoned that the WA Supreme Court rejected a similar argument in State v. Smith. In that case, Smith was convicted of possession of more than 40 grams of marijuana, which was punished as a felony. He argued that the seriousness of the offense did not warrant classifying his crime as a felony. The court rejected Smith’s argument, noting that it was unaware of any authority supporting the proposition that classification alone could constitute cruel and unusual punishment. The court also held that Smith’s actual sentence was not grossly disproportionate to his offense. Consequently, under the traditional proportionality analysis, Smith controls. Therefore, classification of a crime as a felony despite the absence of a knowledge or intent requirement does not result in grossly disproportionate punishment.

2. WAS SCHMELING’S SENTENCE UNCONSTITUTIONAL GIVEN THE NATURE OF THE OFFENSE OR THE CHARACTERISTICS OF THE OFFENDER?

This analysis involves two steps. First, the reviewing court considers “objective indicia of society’s standards (categorical approach), as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentencing practice at issue. Second, the reviewing court considers precedent and its own understanding and interpretation of the Eighth Amendment to determine in the exercise of its own independent judgment whether the punishment is unconstitutional.

The Court acknowledged that Schmeling wanted them to apply a categorical approach. However, the Court of Appeals declined to apply the categorical approach to punishment of adult drug offenders like Schmeling. It held that under State v. Smith, RCW 69.50.4013 does not violate the Eighth Amendment even though it punishes the possession of small amounts of controlled substances as a felony without imposing a knowledge or intent element.

3. DID SCHMELING’S SENTENCE VIOLATE DUE PROCESS?

In short, the Court held that RCW 69.50.4013 does NOT violate due process even though it makes possession of drug residue a crime without requiring any culpable mental state.

The court reasoned that Strict Liability Crimes – crimes with no knowledge or intent requirement – do not necessarily violate due process. “We do not go with Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”

The Court of Appeals further reasoned that WA’s Supreme Court repeatedly has stated that the legislature has the authority to create strict liability crimes that do not include a culpable mental state. Also, our Supreme Court twice has directly addressed in two other cases whether the elements of possession of a controlled substance under prior versions of RCW 69.50.4013 contains a knowledge or intent element. Those cases were State v. Bradshaw and State v. Cleppe. In both cases, the court held that the legislature deliberately omitted knowledge and intent as elements of the crime and that it would not imply the existence of those elements.

Here, Schmeling cites two cases from other jurisdictions holding that a strict liability offense violated due process. However, given our Supreme Court’s repeated approval of the legislature’s authority to adopt strict liability crimes, the Court found Schmelling’s arguments unpersuasive.

In sum, the Court of Appeals held that RCW 69.50.4013 does NOT violate due process even though it does not require the State to prove intent or knowledge to convict an offender of possession of a small amount of a controlled substance. It affirmed Schmeling’s conviction and sentence.

About 10 days after his 18th birthday, O’Dell had sex with 12-year-old A.N. The two met up on Sunday afternoon, along with a mutual friend, to drink wine and smoke cigars in the woods. Apparently, she, the friend, and O’Dell made plans to meet up again later that night but that the friend did not join them as planned. She and O’Dell sat in the woods to wait for their friend and, after a few minutes of talking, O’Dell forcibly raped her.

Sean O’Dell was convicted of Rape of a Child Second Degree. At O’Dell’s sentencing hearing, the defense requested a lighter sentence because, as he said it, “The defendant’s capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law, was significantly impaired by youth.”

The defense also argued that when O’Dell committed his offense, he “was still in high school, associating with school age persons” and “was not some mid-twenties man hanging out at the local high school or trolling the internet for young people.”

Finally, the defense quoted portions of the United States Supreme Court’s decision in Roper v. Simmons, which held that it is unconstitutional to impose the death penalty on a juvenile. Roper relied on research, by various medical and psychiatric associations, indicating that juveniles are more susceptible to negative influences and impulsive behavior and therefore less morally culpable for their crimes relative to adults.

Despite Defense Counsel’s arguments, the trial court sentenced O’Dell to 95 months of prison and said that it could not consider age as a mitigating circumstance.

O’Dell committed this offense 10 days after his 18th birthday. As stated by his defense attorney, “had the incident happened two weeks prior, and assuming the State could not convince the Court to prosecute O’Dell as an adult, he would be facing 15-36 weeks in a well-guarded juvenile detention facility … rather than 78-102 months in an adult prison.”

On appeal, O’Dell challenged his 95-month sentence. He argued that the trial court abused its discretion when it refused to consider O’Dell’s own relative youth as a basis to depart from the standard sentence range.

The WA Supreme Court ruled that the trial court erred when it refused to consider O’Dell’s youth as a mitigating factor justifying a lower sentence. First, it reasoned that all defendants 18 and over are, in general, equally culpable for equivalent crimes. But it could not have considered the particular vulnerabilities – for example, impulsivity, poor judgment, and susceptibility to outside influences – of specific individuals. The trial court is in the best position to consider those factors.

Second, the WA Legislature defining an adult felony offender as “18 and over” did not have the benefit of psychological and neurological studies showing that the parts of the brain involved in behavior control continue to develop well into a person’s 20’s:

These studies reveal fundamental differences between adolescent and mature brains in the areas of risk and consequence assessment, impulse control, tendency toward antisocial behaviors, and susceptibility to peer pressure. Until full neurological maturity, young people in general have less ability to control their emotions, clearly identify consequences, and make reasoned decisions than they will when they enter their late twenties and beyond.

Finally, the Court concluded, in light of what we know today about adolescents’ cognitive and emotional development, the defendant’s youth may, in fact, relate to a defendant’s crime that it is far more likely to diminish a defendant’s culpability; and that youth can, therefore, amount to a substantial and compelling factor justifying a lighter sentence. “For these reasons, a trial court must be allowed to consider youth as a mitigating factor when imposing a sentence on an offender like O’Dell, who committed his offense just a few days after he turned 18.”

The WA Supreme Court remanded O’Dell’s case for re-sentencing.

My opinion? Good decision. The defense attorney was very intelligent to provide the court with studies showing that young offenders have less ability to control their emotions and impulses. This is very true. Indeed, this reasoning is exactly why the Washington Legislature adopted the Juvenile Justice Act in 1977 and treats young offenders differently than adult offenders.

Here, although the Defendant was categorically denied Juvenile Court because he was 18 years old, he was barely 18 years old when he committed the offense. He’s much closer to being a child than an adult. And until a young person turns 25, their brains haven’t fully developed. Good decision.

In State v. Walker, the Court of Appeals decided a trial judge can decide whether and how a prisoner should be restrained by shackles in the courtroom.

Here, the defendant Vernon Walker pleaded guilty to one count of Murder in the Second Degree and one count of Assault in the Second Degree arising from a 2003 shooting. At his sentencing hearing, jail security officers transported him to court wearing handcuffs and leg restraints. The trial court denied Walker’s motion for an order removing the handcuffs for the hearing. On appeal, Walker argues that the denial of his motion violated his constitutional right to appear before the court free of physical restraint. He also argued for a new sentencing hearing.

On appeal, Walker argued he had a constitutional right to appear in court free from restraints, regardless of whether a jury was present, and that there was no factual basis to support his shackling. He contended that because he had no history of disrupting court proceedings or attempting to escape from the courtroom, there was no reason to believe that he would do so at his sentencing hearing. He argued that the State’s claims otherwise were speculation. Walker also asserted that restraints would dehumanize him and prejudice the sentencing judge.

Despite Walker’s arguments, the Court of Appeals disagreed. They reasoned a trial judge has sole authority over whether and how a prisoner should be restrained in the courtroom. Furthermore, even though the law strictly forbids defendants from appearing before juries wearing shackles, a court may shackle a defendant at non-jury hearings on a “lesser showing” than is required to shackle a defendant during a jury proceeding. Finally, the court reasoned that restraints are permissible in non-jury hearings to prevent injury to people in the courtroom, disorderly conduct at trial, or escape.

My opinion? This is a tough case. It is well settled that in a proceeding before a jury a criminal defendant has a constitutional right to appear free from restraints or shackles of any kind. In State v. Williams, the defendant’s conviction for burglary was reversed because the trial court, without justification, denied the defendant’s motion that he and his witnesses be unmanacled before the jury during the trial. The Williams court cited article 1, section 22 of the Washington State Constitution which provides “In criminal prosecutions the accused shall have the right to appear and defend in person,” and stated:

The right here declared is to appear with the use of not only his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty.

Here, in the Walker case, the Court of Appeals distinguished its reasoning from Williams to the extent that Williams only applied to times when the defendant was before the jury. Otherwise, for non-jury hearings, judges have full authority to decide whether defendants must appear in restraints and shackles.

VERY interesting opinion from the WA Court of Appeals says that a “shaming” sentence for a defendant convicted of is unlawful. More specifically, the Sentencing Reform Act does NOT support a sentencing court’s requirement that a defendant convicted of Theft First Degree must stand on a street corner holding a sign that states, “I stole from kids. Charlotte Button.”

The defendant Charlotte Button was convicted for First Degree Theft for embezzling funds from a high school club. The trial court sentenced her to two months in jail and imposed an additional conditionwhich intended to “send a message to the community.” The court explained the sentencing condition: “Before you begin your jail time, you are going to spend 40 hours standing at the corner of Wishkah and Broadway with a sign that says, ‘I Stole Money From Kida. Charlotte Burton.’ You’re going to do it two hours at a time twice a day from 7:00 to 9:00 in the morning and 4:00 to 6:00 in the afternoon.” Along with the “public shaming condition, the judge also imposed 60 days jail.

Ms. Button appealed the “public shaming” portion of her sentence on the grounds that it violated her Constitutional Rights under the First Amendment and 8th Amendment of the Constitution. In other words, her Free Speech rights were violated and the judge’s sentence was arguably Cruel & Unusual Punishment.

The Court of Appeals decided that although Washington’s Sentencing Refor Act allows a number of sentencing alternatives – including drug treatment for drug offenders and sexual deviance treatment for sex offenders – “public shaming” is not a designated sentencing alternative. “Nor does any other Sentencing Reform Act provision independently authorize the sign-holding condition, which clearly requires Button to affirmatively engage in some conduct. Thus, there is no statutory authority allowing the imposition of a sign-holding condition in the first instance.”

The Court did not address Ms. Button’s Constitutional arguments.

My opinion? Good decision. It’s well-grounded in statory authority (and lack thereof). Sure, the defendant’s actions leading to the conviction were bad. Nevertheless, she paid her debt to society by serving a significant amount of jail (60 days). And I’m sure the court imposed restitution and court fines, as well. Good decision.

Petitioner Graham was 16 when he committed armed burglary and another crime. under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt. Subsequently, the trial court found that Graham violated the terms of his probation by committing additional crimes. The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the Burglary. Because Florida abolished its parole system, the life sentences left Graham no possibility of release. He challenged his sentence under the Eighth Amendment’s Cruel and Unusual Punishment Clause.

The U.S. Supremes sided with Graham, and reasoned the inadequacy of penological theory to justify life without parole sentences for juvenile nonhomicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead the Court to conclude that Graham’s sentence was cruel and unusual. Morever, defendants who do not kill, or foresee that life will be taken are less deserving of such punishments than are murderers. Finally, the court reasoned that serious nonhomicide crimes may be devastating in their harm, but in terms of moral depravity and the injury to the person and to the public, they cannot be compared to murder in their severity.

My opinion? The U.S. Supremes made the right decision. It seems Draconian to impose a life sentence on a minor who committed a non-homicide crime. Period.

Whatcom County Jail’s population hit a record high over Presidents Day weekend and since then, law enforcement agencies have been booking fewer people, to ease the crowding.

The jail’s population reached 323 inmates – its operational capacity should be 212 inmates -the weekend of Feb. 13-15, causing the jail to run out of temporary beds and come close to running out of clothes, sheets and other resources.

From Feb. 1 to Feb. 16, an average of 26 people were booked into the jail each day.

Bellingham police have been citing and releasing some people arrested on misdemeanor, and booking and then immediately releasing others. An officer might take some people to jail to have their photos and fingerprints taken, then have the jail release them.

My opinion? I’ll state the obvious: the criminal justice system in Whatcom County has reached peaked capacity. Jails are overcrowded. Trial calendars are filled. Trust me, I know.

The easy solution? Hire an additional judge, build additional courts, and build another jail. Unfortunately, that’s not going to happen any time soon. Put simply, The County lacks resources to build jails and/or hire more court staff. This is not due to sloppy spending on the part of the County. The Whatcom Superior Court has already eliminated numerous services due to the decrease in revenues. That said, the likelihood of obtaining more revenue to hire another judge and/or construct another jail is slim to none.

The harder solution – and probably the more criticized; yet WORKABLE solution – is for the Prosecutor’s Office to negotiate more cases to a favorable resolution. They’re a trial-happy bunch, and unnecesarily so. Not every case must be brought to trial. Justice happens when all parties leave the courtroom satisfied with the result.

At any rate, overcrowded jails are symptomatic of larger problems. The County judiciary is burning the candlestick at both ends. We’re seeing a decrease in judicial revenues and an increase in inmates. The state of affairs certainly is alarming. Why now, and why all of the sudden?